DC circuit rules against EPA in bee insecticide case

A bee is shown on a flower

A bee is shown on a flower.

A federal appeals court convicted the Environmental Protection Agency of failing to properly determine whether an insecticide was toxic before approving its use. As a result of the ruling, the EPA now has until September 2023 to determine the chemical’s safety and report regularly to the court to ensure it stays on track.

In a 12-page judgment, Senior US Circuit Judge David Tatel (a bill clinton appointment) wrote for a three-judge panel of the U.S. Court of Appeals for the DC circuit, chiding the EPA for what Tatel called “eight years of total non-compliance” with federal law so egregious that it “disobeys the rule of Sanity.” US Circuit Judges Patricia Millet (a Barack Obama officer) and Neomi Rao (a donald trump appointment), made up the remainder of the unanimous panel.

Under the Endangered Species Act (ESA), EPA must first assess whether its actions have the potential to affect endangered species. Tatel said if proposed EPA action could cause harm, she would need to consult with the National Marine Fisheries Service or the Fish and Wildlife Service.

“This required consultation is critical as it involves cross-agency consideration of what plausible mitigation actions could be implemented to avoid adverse impacts on vulnerable and threatened species,” Tatel said. A separate law regulates the sale of pesticides and requires that all pesticides sold in the US be registered with the EPA.

Tatel said that “the EPA has long had a strained relationship with ESA,” which has resulted in the EPA facing many lawsuits.

In the current case, the EPA classified the pesticide cyantraniliprole as a “reduced-risk” pesticide. The chemical is used to protect citrus trees and blueberry bushes from insects. However, the Court of Appeal found that the agency had failed to consider cyantraniliprole’s potential hazard to protected plants and animals before granting its approval. Environmental groups, including the plaintiffs, have argued that cyantraniliprole is partially responsible for the recent and dramatic decline in the pollen-producing bee population.

Tatel blamed the EPA for its failure to timely meet its safety-related obligations under the law:

In an attempt to avoid this congressional deadline, EPA insists its delay is reasonable, citing the complexity of determining effects, numerous competing obligations and its new “programmatic approach” to pesticide registration. Such considerations might prevail if Congress had never set a precise deadline. But when Congress mandates a schedule, that schedule is “suppl[ies] content for th[e] Rule of Reason.” Here Congress has spoken.

Tatel admitted, “True, we’re groping in the dark about the exact threat cyantraniliprole poses,” but said the unknown is “exactly what the efficacy assessment is intended to shed light on.”

Tatel not only ordered the EPA to make its decision by September, but decided to keep the case under review in the district court.

“To give our injunction consistency, we will retain jurisdiction and monitor EPA’s progress,” Tatel said.

The plaintiff in the case, the Center for Biological Diversity, called the ruling a “judicial victory” in a statement.

“We are pleased that the court has ordered the EPA to protect endangered bees and other wildlife from this extremely toxic insecticide,” he said Stephanie parents, a senior counsel at the Center for Biodiversity and co-counsel on the case. “It shouldn’t take eight years and two lawsuits for the agency to fulfill its fundamental duty to protect irreplaceable pollinators like the blue fender butterfly and the rust-spotted bumblebee.”

This isn’t the first time a bee-related issue has been dealt with by an appeals court this year. In this case, a jury found that bees are “fish” under California’s Endangered Species Act.

[Image via Justin Sullivan/Getty Images]

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